SLACUM

v.

POMERY

Marshall, Ch. J.

delivered the opinion of the court as follows, viz.

Upon a critical examination of the act of assembly oh which this action is founded, the court is of opinion that jt is rightly brought'. Although the drawer of the bill was not liable to the damages of Virginia, the endorsor is feubject.to them, he having endorsed the bill in Alexandria. The words of the act are, that where a bill of exchange 'shail-.be protested, “ the drawer or endorsor shall be subject to 15 per-cent. damages thereof.” The third section giyes an action of debt “ against the drawers or endorsors jointly, or against either of them( separately. The act of assembly appears to contemplate a distinct liability in the endorsor, founded on the contract created by his own endorsement, which is not affected by the extent of the liability pf the drawer. This is the more reasonable, as a bill of' exchange is taken as much on the credit of the endorsor,. as of the drawer; and the'endorsement is understood to be not simplv the transfer of the paper, but a new and a substantive contract. 'There is, however, an objection taken to this decía» ration. It omits to allege notice tyf the protest; an. omission which is deemed fatal,

It has been argued that the act'of-assemblyy which givei the action of debt, not requiring notice .to be. laid in the declaration,' ihat requisite, which is only essential in an action founded on,the custom of merchants, is totally dispensed with. Rut this court is not of that opinion. In giving the action of debt to the holder of a bill of exchange, and in giving it the dignity ,of a specialty, the legislature has not altered the character of the paper in other respects. It is still a pure commercial transaction governed by commercial lavtu. Notice,.of the protest is still necessary, and the omission to aver it in the declaration is still fatal.

Had this error.been moved in arrest of judgment, it is presumable the judgment would have been arrested; but it is not too-late ,to allege,.ás error, in this court, a fault in the declaration, which ought to have ' prevented the rendition of a' judgment in the court below.

The judgment is arrested, and the cause remanded with direction that the judgment be arrested.

-After the opinion was delivered, Youngs praye that the cause might be remanded with leave to amena

Marshall, Ch. J. Here is a verdict which must be set aside before an amendment can be allowed. .

It might be set aside by-the court below, but this can see no reason in the record for setting it aside.